Volume 17 — New Jersey Law Reports

<p>A state of demand in an action (therein styled trespass) charging “that the defendant took in his possession, certain goods and chattels, the property of the plaintiff, that he refused and still refuses to deliver them to the plaintiff; cho” requested, &c. and has converted them to his own use,” sets out a case of trover.</p> <p>In trover, a plaintiff 5s admission that the property claimed is a third person’s, may be proved on the trial.</p> <p>On an appeal, an execution on which the goods in controversy, were sold, is inadmissable as evidence, unless supported by proof of a judgment; although not objected to in the justice’s court.</p> <p>Trover may be maintained for taking goods, whenever trespass will lie for it.</p> <p>The injury complained of, and the time of doing it, should be laid, — in trover even in the court for the trial of small causes, although it js not essential that the time laid, be the truc time of the act done,</p>

<p>Certiorari to the Secretary of State.</p>

<p>A Sheriff’s return of a writ, “served,” is not conclusive as to time aud place of service, which may by affidavit, be shown to be illegal.</p>

<p>The words “He has broken open my letters in the Post Office;” spoken of the plaintiff, with the averments of his being postmaster of, &c. meaning that plaintiff had been guilty of &c., do not in their usual and common sense acceptation, import that the plaintiff unlawfully and in violation of his official duty, broke open the defendant’s letters, and are not actionable.</p> <p>Slanderous words must charge a party with an offence not only indictable, but, of moral turpitude.</p> <p>The mere opening of letters, whether from curiosity or wantonness does not involve the idea of moral turpitude, or render a (nan infamous, in the sense which the law imputes to those terms, when it is settling the doctrine of slander, at the common law.</p> <p>An inuendo cannot extend the sense of words spoken, beyond their natural meaning, unless something is put upon the record, to which the words spoken may be referred, and, by which, they maybe explained in the inuendo.</p> <p>In relation to private persons, no words are actionable, however penal the act charged, may be, unless they impute to him,an act that is malum in se and not merely malum prohibitum.</p> <p>Nor is every act which is malum inse, such crime as a false charge of which, will sustain an action for slander.</p> <p>The rule is, the words must either have produced a temporal loss to the plaintiff in special damage sustained; or they must convey a charge of some act criminal in itself and indictable as such, and subjecting the party to an infamous punishment; or, some offence involving moral turpitude.</p>

<p>An appeal from an order of filiation, is in the nature of a new trial, and the onus probandi rests upon the respondents, and not on the appellant.</p> <p>An order of filiation made upon the complaint of overseers of the poor, of a different county and township from that in which the child was bora, is void. v</p>

<p>On Certiorari to the Clerk’of Middlesex county, to return the -proceedings of Commissioners on assessing damages to landholders, &c.</p>

<p>On Certiorari to Middlesex Pleas. On a writ of attachment»</p>

<p>The Charter of this Company provides for the payment of certain taxes to the State, and then enacts “ that no farther or other tax or impost shall be levied or assessed upon said Company.”</p> <p>Held that this does not exempt the franchises or privileges merely, of the Company ; but the Company generally and its property, from taxes for county, township and all other purposes than those stated in the Charter.</p>

<p>The supplement to the act for the limitation of actions, passed, 21st Februry, 1820, is constitutional; and provides for cases where the defendant has removed out of this State, and the cause of action accrued, prior tothe passage of that supplement.</p>

<p>The. Statute of Wills, for devising Real Estate in New-Jersey, requires the the Testator to sign his name, in the presence of witnesses; and no mere acknowledgment in their presence, of his signing a Will, can make it good for the conveyance of lands, under the Statute.</p> <p>Although three subscribing witnesses are requisite to the attestation of a Will, it is not necessary that they should all prove the execution of it. One of them is sufficient for that purpose.</p> <p>This cause was argued at February Term, 1838, by Messrs. Jeffers and Williamson for plaintiff, and Messrs. Halsted and Frelinghuysen, for the defendants.</p> <p>At May Term, 1838, the Court delivered their opinions, refusing a new trial; but at the earnest request of the plaintiff’s counsel, consented to hear a second argument on the motion; which was accordingly made at February Term, 1839, by</p>

<p>Although the statute of New Jersey, authorizing John Denn, for his own accommodation, to erect a dam across Salem Creek, a navigable water, provides no remedy for damages to the owners of meadow, by causing an overflow of water on them; yet it is no defence against an action for such damages.</p>

<p>An affidavit to obtain an attachment, stating that the defendant absents himself from his creditors, and is not resident, &c. is deficient.</p> <p>Certiorari lies to remove proceedings in domestic or foreign attachment, afterjudgment in Court of Common Pleas.</p>

<p>On removing a cause into this court, by habeas corpus, bail must be put in (even by a corporation) according to the statute, if jequirecl by the plaintiff.</p>

<p>Certiorari directed to the Commissioners of Appeal.</p>

<p>Certiorari to Justice Plumer.</p>

<p>Matter of practice.</p>

<p>On the question whether an Administrator or Executor should sue in liis own name, or in his representative character, the true rule is this : that in all cases where the Executor or Administrator has the action, in the right of his 'testator or intestate, that is, where the action accrued, to the deceased, in his life-time; and also, where the action has accrued to the Executor or Administrator, since the death of the Testator or Intestate, either upon contract express or implied, made with the Testator or intestate, or ior an injury done to the property of the Testator or Intestate, in his life-time; there, the Executor or Administrator must sue in his representative character : But whore the action accrues to the Executor or Administrator, upon a contract made by or with him, as such, since the death of the testator or intestate ; or for an injury done to, or a conversion of the property of the testator or intestate, in the hands or possession of the Executor or Administrator after the death of the testator or intestate, there the action may and ought to be brought in the proper name of the Executor or Administrator, describing himself to be such; but notes Executor or Administrator.</p>

<p>A return of a road by surveyors, must show that an absent surveyor had notice of their meeting, or such notice must appear by proof laid before the court.</p>

<p>A complaint for forcible entry and detainer, must state that the complainant was, at the time of the wrong complained of, in possession of the premises, either in fact or in law.</p>

The Case. Richard Davison and Peter Davison, Jun. Administrators of John Davison, deceased, filed their account in the Orphans* Court of Monmouth County, in July Term, 1835. The plaintiffs in certiorari, who together with the administrators, Are children and next of kin of tlie intestate, excepted to that account. The account and exceptions were referred to auditors.

<p>In Error. Submitted without argument.</p>

<p>On Certiorari to a Justice of the Peace. Matter of practice, on attachment for debt.</p>

On Certiorari in matter of Insolvency. In the term of September last, after argument, the court affirmed the discharge granted to the insolvent, in this case, with costs. ■

<p>Iu case. On motion for a new trial.</p>

<p>On sdrefacias against bail. Matter of practice.</p>

<p>A disimei’csted indorser of a promissory note, is a competent -witness to prove the usurious transfer of the note.</p>

In Bower for Lands in Essex. On Demurrer. This case was submitted without argument, upon the following state of the case, and briefs by STATE OF THE CASE. The declaration is in the usual form. The defendant has pleaded two pleas.

In Case. On counter motions to open judgment, and to amerce Sheriff. This action is against Robert P. Bell, as indorser of a promissory note for g748,49, purporting to be made, by George W. Tyson, &Co., payable to his order. The action was commenced by capias returnable on a day late in the term of May, 1838.

<p>In debt on judgment by confession on warrant of Attorney.</p> <p>Motion to open judgment, &c.</p>

In Ejectment for lands in Monmouth. This case was submitted without argument upon the following state of the case, and briefs. STATE OF THE CASE.

<p>A bill of exceptions must be drawn up and sealed at the time of the trial; and no bill shall be afterwards sealed without the mutual consent of the attornies; or unless settled by the judges who tried the cause, in pursuance of an agreement made at the trial, in open court, to that effect.</p>

<p>Iu case. On motion to amerce the Sheriff of Essex.</p>

<p>In an action for breach of covenant of warranty of title, on eviction, the rule is, to allow for damages,.the amount of the consideration money with, in-Merest thereon, not exceeding six years antecedent to tlie eviction, together with the costs consequent thereon, and no more.</p>

<p>In an action for breach of covenant of warranty of title, on eviction, the rule is to allow for damages, the amount of the consideration monev with interest thereon, not exceeding six years antecedent to the eviction, 'together with the costs consequent thereon, and no more.</p>

<p>If the answer of a witness be direct and pertinent to the question put, it is competent evidence as against him who put the question; but ii he make statements foreign to that question, they are not competent evidence, and should be overruled, if required.</p>

<p>Question concerning consent rule, motion lor writ of restitution, 8cc.</p>

On demurrer. The declaration in this case, contains a number of counts, to the first four of which, the defendants have so pleaded as to raise the question now submitted for the decision of the court.

<p>In case, assumpsit.</p> <p>The defendants pleaded payment, and gave notice of set-off under the statute. (Elm. Dig. 506.) On the trial, thejury found a small balance (g ) due the defendants, as executors, &c.</p>

emnrrer to indictment for uttering, &c. The defendant was indicted at the Oyer and Terminer, of Passaic county, for uttering and publishing as true, a certain false, forged and counterfeit promissory note for the payment of money, purporting to have been issued by the Bank of Westerly, in the State of Rhode Island, on the 8th September, 1837 ; whereby the said Bank promised to pay F. S. or bearer, on demand two dollars; knowing the same to be false, &c. with intent to…

<p>in the court of small causes, if a jury cannot agree upon their verdict, anti are dismissed by the justice, his jurisdiction is at an end in that cause.</p>

<p>On demurrer to declaration.</p> <p>This was an action of debt for three hundred dollars, the aggregate amount of ten penalties of thirty dollars each, for charging in a bill of costs, for services not actually rendered, or for services not allowed by law. Elmer’s Dig. 424, pl. 27. The bill of privilege contains ten counts; each count being for a distinct penalty for a specified over-charge: but all the items complained of, are contained in one bill of costs. The defendant demurs to the whole bill/ showing several matters for cause of demurrer: namely — that the plaintiff before commencing this suit, had not appealed from the taxation of the clerk: that it was not averred in the bill of privilege, that the over-charges were wilfully made, nor that ho had taken any greater fee, or reward for services done by him, than was allowed bylaw. And lastly that the bill of privilege demands ten penalties of thirty dollars each, whereas only one such penalty, if any, has been incurred. The plaintiff having joined in demurrer, tiie cause was argued, by</p>

In case. On motion for discharge on common bail» Matter of practice. This was an action for a libel. The defendant had been ar* rested and held to bail, upon a Judge’s order,in the sum of $5000.

<p>Certiorari in matter of Turnpike Gate.</p>

On award of arbitrators. Motion for attachment. O'n the 17th Sept. 18S0, the parties submitted, by agreement uudertheir hands and seals, their matters in difference, to-the final determination and award of Charles Parker, Peter Spader, and Joseph C. Griggs, or of any two of them : such submission to be made a rule of this court, agreeably to the statute in such case made and provided.

<p>Process issued against both defendants, served on one only, and no appearance entered for the other; but a plea, without his authority, filed for both ol them; the cause tried and he on whom process was served being acquitted, and the other defendant found guilty by the jury, without notice of the suit, ov trial: proceedings and verdict set aside, as against him.</p>

In debt on warrant of attorney. Mr. Simpson and Mr. Williamson in behalf of subsequent judgment creditors, moved to set aside the-judgment in this case upon the ground that it had been prematurely entered. The bond had been given, and bore date on the 12th July,A. D. 1839, and was payable on demand, and judgment had been entered up by' confession upon it,the same day'.

<p>Incase. Matter of practice. „</p> <p>This cause was tried at the Salem Circuit, before Mr.-Justice Ryerson, since dec’d, and a verdict rendered for the defendant. Upon the coming in of íi-se Postea, a rule was granted in behalf of the plaintiff, calling on the defendant to shew cause, why the verdict should not be set aside and a new trial granted. After that, the plaintiff died, having made a will and appointed an executor who 3ms proved the same. At the last term,</p>

The Justice has no where stated on his docket; that the plain-* tiff filed any state of demand, or the defendant airy set-off, but he recorded the proceedings, as follows : “The defendant in the course of the trial, objected to one item of the plaintiff’s account viz: a due bill for $37 31, dated July 23, 1-833, alledging tbe same to have been included in one of a subsequent date, viz : the 30th Oct. 1832, for $44 21, although he acknowledged his signature to both bills.

<p>In error to Essex Circuit Court.</p>

<p>Ejectment. Motion to stay proceedings till former suit is «decided. Matter of Practice.</p>

<p>Motion for a mandamus in matter oí appeal.</p>

At the term of June, 1837, of the Salem Court, M. Richman jr. as the administrator of Joel Abbott, dee. (who died insolvent) obtained a rule that “ the creditors of said estate, exhibit to him under oath or affirmation, their claims and demands against the estate, in six months,” according to the 3d section of the “ act concerning the estates of persons who die insolvent.” JR. L. 766.

Upon the coming in of the account, and this claim, Eleazer Smith, one of the creditors, obtained a rule to file exceptions to the same, and the other claims under the 6th section of the act.

<p>If the return oí a road be filed with the county clerk during term time of of the Common Pleas ; a person supposing hiruself aggrieved, is entitled to fifteen days after such filing, to consider whether to enter a caveat against recording the return; and if the court rise before the expiration of the fifteen days, the caveator may apply at the next succeeding term of the court, for the appointment of freeholders to review the road.</p> <p>The application for appointing surveyors to lay out a road, need not name the owner of the land at the beginning place. Precision and certainty therein of the intent of the petitioners, is sufficient,</p>

<p>'1 be process being against defendants as executors; the declaration against them in their individual capacity — and the evidence on tlie trial being entirely against them as executors, constitute such a variance as is fatal to the plaintiff’s recovery in the suit.</p>

<p>Proof tliat notice of the time and place of meetings of Surveyors to lay cut a road, Was legally given, must be made before them or a majority of them. Proof of such notice made before the only two of them who met at the time and place appointed and adjourned to another day, is insufficient.</p>

<p>In an action which survives the death of one of the defendants, it is not too late upon the return of the postea, by leave of the court to suggest, nunc jiro tunc, the death of a defendant, which happened before the trial, even if there was an opportunity to make the suggestion before trial.</p> <p>It is not competent for a party to prove the declarations of his own witness, in contradiction of his testimony under oath at the trial.</p> <p>The minutes of the Circuit Court, are not competent evidence to prove the fact of a former trial between the same parties. Either an examined copy oí the record, properly authenticated, or the postea, at least, must be produced.</p>

<p>Action of indebitatus assumfisit, can never be maintained unless upon a Coritract expressly made between the parties, or implied in law.</p> <p>No action will He fora mere voluntary courtesy,</p> <p>A master is not liable to a third pdrson, for the support of his infirm and helpless slave, when he has not only not permitted, but has positively refused to do so. Per Ford, White .and Dayton, Justices. Hornblower, C. J. and Nevius, J. dissenting.</p>

<p>A count against an executor as such, to r money paid by plaintiff since the .estator’s death, on a bond in which he was testator’s surety ; and charging the executor with such payment to his use as executor, and with his promise to repay, &c, is a count on which a judgment de bonis testator’s, may be rendered : and which may be joined with counts for promises made by testator in his life tin! e.</p> <p>Counts may be joined, where Use fund out of -which the damages are to oe applied, is the same.,</p>

<p>Sis error to Cumberland Common Pleas.</p>

<p>The use of the ■word “declare” in the oath of a Surveyor of Highways, is synonymous to “ promise,” required by the Statute; and is not cause for -reversal.</p> <p>The not filing of Surveyors’ official oaths; but only a copy, with the County Clerk, is not so material an error, as to vitiate their proceedings.</p>

The plaintiff in certiorari, was plaintiff below. On the .trial before the justice, he obtained a verdict and judgment. The defendants appealed: the plaintiff moved to dismiss the appeal on the ground that no affidavit was on file, to warrant an appeal, as required by law; Elm. Dig. 291, sect. 6.

Bui' attachment for contempt, &c. Tito Sheriff of Mercer county having broughi the defendant into court on aa attachment for not performing an award, the Attorney General moved that ho stand committed &c., until he perform the award or ho otherwise discharged according to law.

In ejectment. . On a rule to show cause, why the defendant Heister, should not be discharged out of custody, on a ca. sa., issued against him, for costs in this suit.

<p>In Error to Common Pleas of Passaic county.</p>

In Dower. Rule to show cause &c. On the trial of this cause at the Passaic Circuit, before his lion. Mr. Justice Fowl, the jury rendered a verdict for the defendant. On the coining in of the Postea, a rule was granted, calling oh the defendant to show cause, why the verdict should not be set aside, and a new trial granted.

In Debt. Motion to quash proceedings. The Case. The testator of the defendants, had been special bail for one Michael M’jLear, who had been sued by the plaintiff in the Common Pleas of Essex, and against whom, judgment had beer, obtained, in that action, its June 1888.

In case. Matter of practice. This cause was noticed for trial at the last January Circuit, in the county of Bergen, When it was reached upon the calendar, Mr. Casset!y for the defendant, objected to its coming on, and insisted that it had been prematurely noticed for trial: that a commission had been regularly sued out at the instance of the defeml-ini, to take the deposition of a witness residing is the state of , which had not yet been returned; and he contended that the…

- This ease was argued at the Bergen Circuit, and the following opinion delivered by his Honor, Chief Justice Hornbloweiv as Circuit Judge, having been submitted to and concurred in by the Associate Justices of this Court; and it, being on a subject; matter of genera! interest, is deemed proper for publication.

In Dower. On demurrer to replication. STATE OF THE CASE. The defendant pleads in substance as follows: That the said Robert Thompson, in and by his last will and testament duly executed to pass z'eal estate, gave and devised to his'wife, the said Nancy, the use of all his real estate not otherwise disposed of in said will; until his youngest son should arrive at the age of Twenty-one years; and without expressing in said will, whether such devise to her, was intended to be…

<p>In Case? On Demurrer to Plea.</p>

<p>In matter of Highway.</p>

<p>On motion to set verdict aside.</p>

This was an action brought against the defendant as indorser of a promissory note, and was tried at the Somerset Circuit in April, 1838. The following is a statement of what took place at the time of the trial, from the notes of Justice Ford.

In Error. This cause came before the court in May Term, 1836, on a writ of error to the Common Pleas of Somerset county, and the judgment below which had been rendered against the plaintiff in error, was reversed by the unanimous opinion of this court. 3 Green's R. 289.

<p>0n Rulo to show cause against a new trialv.</p>

<p>A presentment and demand for payment of a promissory note, may be made at the drawer’s office or regular known place of business for the transaction of Ins monied concerns, as well as at his residence.</p> <p>Such presentment and demand may lie made by a person not a notary public. An authority therefor, may be created by parol. And the mere possession of the paper, is evidence enough ci ouch authority.</p> <p>A notarial demand, and protest of non-payment of a promissory note, is not necessary to fix an indorser’s liability.</p> <p>Any person may present at its maturity, a promissory note of which he is put in possession, and if paid in the ordinary course of business, and taken up, the payment is good: and if not paid, the demand is good as a groundwork for notice to the indorsers, and that without any protest.</p> <p>A notary’s name may be printed or written at the foot of the notice to indorsers. that a note is dishonored.</p> <p>In order to make an indorser liable, notice of non-payment of the note, must be sent to him, if by mail, cn the day next after the third day of grace, unless the mail depart at an early hour in the morning, before a party with reasonable diligence could mail ids notice.</p> <p>The geBnl rule is that a party is bound to exercise reasonable, not excessive diligent?.'</p> <p>Against indorsors of a promissory note, a clear case of waiver of notice imst be made out. Nothing short of an unconditional promise to pay, made with a full knowledge of the laches of the holder of the note, is sufficient. A 'knowledge that the maker could not pay, does not dispense with strict proof of demand and notice.</p> <p>The question of usury in banking discounts, considered,</p>

<p>An award that B. pay to A. the sum (of money therein mentioned) “ within the space of sixty days; and that A. on the receipt of that sum, do deliver up to B. to be cancelled, a certain bond bearing date the 10th day of December, 1836,” &c. is void for uncertainty.</p>